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Court must cast a wider net

Justice Shah’s proposal ensures judges’ ‘external’ independence from government, but not their ‘internal’ autonomy.

Written by Faizan Mustafa
Updated: August 4, 2014 9:03:36 am
The Constitution favours a wider consultative process in the appointment of judges. Wisdom is not the monopoly of a few in the apex court. The Constitution favours a wider consultative process in the appointment of judges. Wisdom is not the monopoly of a few in the apex court.

Justice Shah’s proposal ensures judges’ ‘external’ independence from government, but not their ‘internal’ autonomy.

The independence and impartiality of the judiciary are not private rights of judges; they are the rights of citizens. Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves, and in their decisions. Independence of the judiciary is the most cherished goal of any legal system, and the process of appointment of judges is rightly seen as a crucial mechanism to achieve this goal. Even in mature democracies, there are widespread public concerns that judges have been appointed through cronyism and secret soundings. We are not an exception.

We had the primacy of the executive in the appointment of judges in the first four decades of our republic. Though most of the judges picked under this system were independent, upright and fearless, at times, the government did succeed in appointing some judges of its choice. It is an open secret that several pliant and submissive judges also made it to the highest court. Justice V.D. Tulzapurkar, an eminent former judge of the Supreme Court (SC), had observed that “sycophantic chief justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another. Thus, the two-year term proposal for the chief justice of India (CJI) by Justice A.P. Shah does not look attractive.

Thanks to the “Second Judges Case”, the days of the government’s upper hand in the appointment of judges are over. But it is painful to see that, even today, supersession is the rule rather than an exception. The only difference is that it is no more the government but the CJI and four seniormost judges who cherry-pick judges. Their decisions at times are as unpredictable as the English weather. A large number of judges were superseded during the last two decades. Several seniormost chief justices of various high courts, including Justice Shah himself, were not elevated. Some of the finest judges were brought in late to ensure they did not become CJI. No one noticed, but the collegium system has also damaged the federal character of our judiciary. As a matter of fact, true federalism as per the Constitution was provided only in the judicial system. Our high courts are in no way subordinate to the SC. Since appointments to the apex court are now in the hands of the five seniormost judges of the apex court, the incentive for dissent in the high court has been lost. Due to the near absence of transparency, accountability too has been a casualty in some of their decisions. In no English dictionary does “consultation” mean “concurrence”. Thus, the present system, where the opinion of the CJI and four other judges has primacy, is clearly against the text of the Constitution. Moreover, it negates the whole idea of “constitutionalism”, as there are no restrictions on the power of the collegium and it virtually has absolute powers in judicial appointments.

It is heartening to note that the Union finance minister, himself an eminent lawyer, has explicitly said that the government does not intend to go back to the pre-collegium days. The level of our political leaders, over the last two decades, has really gone down. If the executive gets an upper hand, judges would be appointed on petty political considerations. We cannot, any more, trust our political masters. But, on the other hand, if the judicial appointments committee (JAC), as proposed by Justice Shah, is going to be dominated by the CJI and three senior judges, who would constitute a majority in the seven-member commission, it is not going to bring any radical change either.

Moreover, it is deplorable that no one wants to look at the text of the Constitution. Article 124 specifically mandates that judges of the SC shall be appointed by the “president of India”, after consultation with “such judges of the Supreme Court and of the high court in the states as the president may deem necessary”(emphasis added). Thus, the Constitution favours what may be called a “wider consultative process” in the appointment of judges. There is great merit in this provision. Wisdom is not the monopoly of a few chosen ones in the apex court. Neither the present collegium system nor the latest suggestion of Justice Shah, nor the UPA’s lapsed bill, gives any role to high court judges in the appointment of SC judges, which is a violation of the express provision of the Constitution.

We have highly eminent judges in our high courts and their opinions must count. In fact, the SC, by eliminating the role of high court judges in the judges’ case, has virtually amended the Constitution. The Indian Constitution certainly does not provide for this kind of amending process. Similarly, in the appointment of high court judges, Article 217 talks of “consultation with the governor”. Justice Shah and the UPA bill completely ignored this provision. Finally, the president should undertake this wider consultative process on his own, that is, independent of government, with primacy being given to the CJI’s opinion.

Thus, although Justice Shah’s proposal ensures the “external” independence of judges from the government, judges’ “internal” independence would be lost in a hierarchical order, as the CJI and three other judges would continue to dominate the appointment process. Let primacy be given to no one institution, as the Constitution favours a participatory process. Is not “constitutionalism” all about limited powers?

The writer is vice chancellor, NALSAR University of Law, Hyderabad

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